from the it-would-appear-there's-some-appetite dept

Another day, another proposal for patent reform in Congress, once again targeting patent trolls (in part). Already this year, we've seen Rep. DeFazio push for fee shifting to make trolls pay legal expenses for bogus lawsuits, Rep. Deutch introduce a bill to force patent trolls to stop hiding anonymously behind shell companies, Senator Schumer seek to make it easier to quickly dump bad patents and Senator Cornyn put a bunch of these ideas together in a bigger anti-troll bill. Most of these have been introduced in the last month or so. We can now add a new proposal from Rep. Bob Goodlatte, head of the House Judiciary Committee, who has released a patent "discussion draft" that includes a number of issues it's trying to fix.

Goodlatte's proposal, like many of the others, has some good things in it, but is pretty weak overall, trying to skirt around the overall troll problems. The bill would certainly be a step in the right direction, but hardly a decisive one. Like Deutch's bill, this one would make it harder for trolls to hide behind shells, and then would do a bunch of things to try to decrease the costs for those who are sued. This would definitely be helpful, because it's the cost of fighting back, even if a company is sure it doesn't infringe, that leads many companies to just pay up to settle. The general estimate we hear is at least $1 million for just the district court case.

The good news is that it is increasingly clear that massive patent reform is back on the table, even with the last comprehensive patent reform bill, the America Invents Act, passing less than two years ago. At the time, we pointed out that the bill did nothing to deal with the troll problem, and it seems clear that many in Congress recognize patent trolling is a problem that needs to be dealt with quickly. Having five bills introduced -- four within the last few weeks -- and many by prominent members of Congress who have the ability to push a bill through, suggests that there really is an appetite in Congress to take on the trolling issue.

The bad news is that the existing proposals could go much, much further, and don't. There's nothing like an independent invention defense (or independent development as evidence of obviousness), or any effort to seek out peer review of patent proposals -- both of which would cut down on many bad patent trolling shakedowns. Furthermore, having watched the messy debate over the America Invents Act, which went on for about seven years (possibly more, depending on how you count), we saw some good ideas in initial drafts watered down more and more year after year, until the final AIA was effectively useless. If we're already starting with relatively weak proposals, once they go through the ringer and the pharmaceutical companies (mainly) strip out the parts they don't like, we may be in for another toothless bill. Hopefully, this is a sequel with a twist ending, and something real and effective can actually become law.

from the uh,-nice-try dept

You may recall that back in April we wrote about CBS threatening to sue Aereo if it launched in Boston, as announced. We quoted CBS's Dana McClintock, exec VP of communications, who said on Twitter:

We will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else.

Seems like a pretty clear and definitive statement. CBS CEO Les Moonves said something similar in a conference call:

If they put up another signal, we'll sue them again.

Aereo then did exactly what it should: it sued first, seeking a declaratory judgment that its service was legal and that it could launch in other markets without fear of expensive lawsuits from CBS. This is what the whole declaratory judgment setup is for. Exactly cases like this where one party threatens another in an effort to scare them off by the threat of expensive court battles.

However, CBS now, hilariously, is trying to claim that when it made those statements, it didn't really mean it would sue Aereo, so there's no controversy and the case should be dismissed. Let me just repeat this one for you. CBS is claiming that when two of its top execs said "We will sue" and "we'll sue them again," it didn't actually mean that it would sue. Wow. That's a special sort of chutzpah.

Instead, CBS claims that Aereo should sit pretty and wait to be sued:

"If the threat of litigation is as imminent as Aereo claims, it will have every opportunity to defend its actions if and when it launches in other cities and if it is sued in those jurisdictions."

Um, that's the whole freaking point of declaratory judgment actions, to avoid having to sit and wait to be sued, so that a company can get on with its business. CBS seems to be admitting here that it's threatening Aereo just to mess with its business plans. How nice.

How about the direct statements from the execs? Eh, what's a little public threat of lawsuits between execs and the press? Certainly not a serious threat, right? Concerning the McClintock statement, they claim that his statement was only referencing Boston, so it's not like it really matters.

Mr. McClintock's "threat" clearly is contained to Boston; his only reference to other locations is the vague assertion that Aereo “will be found to be illegal" "everywhere else" – hardly a concrete promise that any of the named defendants intends to sue Aereo in some other location.

Er, actually, yes, read the quote again. It's a pretty clear statement that Aereo will be sued "everywhere." How about the Moonves quote?

One simply cannot read what Mr. Moonves actually said and say with any certainty – much less with the level of concreteness necessary to sustain a declaratory judgment action – that CBS announced an intention to sue Aereo in any city other than Boston.

Um, again, Moonves's quote is pretty clear that they will sue anywhere Aereo shows up. He said "if they put up another signal, we'll sue them again."